Normally, the deciding factor is where the crime is committed or the dispute arises, not
where the defendant lives.

Still waiting for a reason for your apparently bigoted statement…(see my post @50)

Not quite. The plaintiff has to establish that the statements are defamatory, regardless of their truth value. In practice, this isn’t a very tough hurdle under English (or Australian or Northern Irish) law. At this point it’s up to the alleged defamer to provide a defence, one of which is justification (truth).

Nigel: the hearing that Singh lost was simply on the meaning of the alleged defamatory statements, not on the substanstive issue of libel itself. Singh argued bogus didn’t mean knowingly fraudulent in this context, the BCA said it did. Justice Eady agreed with the BCA on this and another issue of interpretation. It was this interpretation that was overturned on appeal.

“The comment which the Defendant contends that the article bears is that the Claimant’s behaviour in so doing is reckless and irresponsible in the light of the lack of any reliable scientific evidence supporting the effectiveness of such treatments and in the light of the risks of the treatment proposed.”

He then sets out, ailment by ailment and study by study, his reasons for considering that none of the available epidemiological evidence reliably supports the BCA’s claims. This is met by a reply of comparable length in which the BCA, again ailment by ailment and study by study, contests his view and asserts that there is some dependable evidence for its claims. Ms Rogers has told us that, given the judge’s ruling that these are verifiable facts, the trial can be expected to involve expert evidence on both sides and a judicial conclusion as to whether there is any evidence for the BCA’s claims.

One has only to contemplate this prospect to conclude that something is amiss. It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions. But these have been precisely cases in which the defendant has made a clear assertion of highly damaging fact, and must prove its truth or lose.

The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

“I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.”

That is a pass to which we ought not to come again.

Also, the UK system is not the same as saying a prosecutor is guilty until proven innocent, rather its the same as saying the person who accuses another of murder has to prove the allegation, not the accused having to prove the allegation is false.

@Nigel @ post 45 & 46 – you could not be more compleatly wrong. The truth of a statement is an ABSOLUTE defence to a claim of libel. Please don’t misinform our american friends, you know how gullable they are.

@DavidB – excellent and even-handed analysis. Great job.

To be honset, I find some of the attitudes on this from Phil and others just bizzare – if someone writes in the paper that I’m a child molester, I damn well expect them to have to back up that allegation in court with evidence, or else compensate me for the damage to my reputation. Why should I, if the allegation is baseless, have to prove that I am not a child molester? Why should a newspaper, before causing my reputation harm, not be expected to have to gather real evidence to back up their claims?

Perhaps what I find most interesting is the knee-jerk “US GOOD! FOREIGN BAD!” tone of the comments. These are equally valid approached to the problem which each have their strengths & weaknesses. The fundamental differences between the two systems in practice are ones of proccedure, not intent and not in outcome – free speech is perfectly healthy in the UK, libel laws or not.

Fact is, in the any justice system, one side has to bear the burden of proof, and in the US system that side is always supposed to be the one that brings the charges, not the side being charged.

Incidentally, it’s the same method science uses: The burden of proof lies on the one making the claims, not on the rest of the world to prove they’re wrong.

Patent and Copyright law in the US work pretty much like libel law in the UK. A person accused of Patent or Copyright infringement in the US is presumed guilty until proven innocent.

Yes, from over here in the UK, the DMCA (is that the one?) looks like a tool for Hollywood and the music industry to maximise their profits.

I was under the impression that the BCA’s allegations were upheld in the initial hearing, but that Singh appealed, and it was on his appeal that the ruling came down in his favour.

I would like to know how you think he might be purposefully creating this situation for the publicity. He lost the first case and only won the appeal, which does not sound like something carefully planned. If he was doing this for the publicity and had not won the appeal, any further restatement of his position would have been very very expensive. As far as I can tell, he was merely doing his job.

And why do you think the new law should have any practical effect on books sold in the UK? It is about whether US courts should uphold foreign judgements on libel, something they have been happy to do in the past as, believe it or not, the US does have treaties with many other countries over respecting the judgements of foreign courts.

Actually, there’s a reason why the US is doing bank reform as part of an international effort: it will keep US banking from moving offshore by making sure the legislation imposed does not exceed that of other countries. If UK publishers and media companies find the cost of doing business is high enough to warrant moving offshore to a country that provides safe haven- there will be more economic pressure to reform the law to make the UK a more amicable environment.

Also, you have to keep in mind that Americans are under no obligation to put their butts on the line just so libel reform can remain a salient international issue. The American scientist James Watson had a devil of time with revisions while writing The Double Helix just to conform with UK libel law, since his book would get published there. I don’t see why he should have had to worry about it- reading about the revisions, it’s hard to see why so much time and sweat was wasted over it.

- A couple of lawyers, working pro bono, could work a single case & a few such pairs working some high-profile cases might make the point. Great marketing for the lawyers (motive). Doesn’t necessarily cost much….or….a wealthy party may be inspired to fund such a ploy.
— Couldn’t two parties represent themselves there? If so, imaging a day’s docket filled with such cases, all filled by overseas plaintiffs & defendents safe from extradition, that simply don’t show up. In effect creating a “sit-down strike” (its difficult or impossible to add, on the same day, tomorrow’s docket, etc.) — that’s a best-case scenario & highly improbable, I admit. But even if occasionally successful in lesser degree it sends a message–a newsworthy message.

- Expense could be minimized by one side–the accused–giving up for lack of funds & doing so loudly in the press, etc. THEN, the winner can publicly gloat they won even though they were very wrong…but thank the English courts & law for being a co-conspirator.
— If both parties (accused & accuser) are collaborating no actual payment need be paid–what count’s is the court’s judgement on record.

- Sure, contempt might be an issue — but if the facts of the complaint are all public, the court would have to assess separately if the parties are conspiring. Very difficult if they’re located in foreign countries. And even if they are conspiring–to the uninformed public (at that point) real damages may be demonstratable!
— AND that makes for very bad press for the law & courts if such antics become widespread (the mere appearance of such is damaging to the law & courts as it causes them to effectively admit the law motivating the action is so bad to motivate the action).

“and who knows or cares about Northern Ireland”.

What makes you say that?

He wasn’t found guilty. The BCA dropped their suit after the law lords ruled that one of the key phrases (“not a jot of evidence”) was opinion, not a factual statement capable of being defamatory. They found that evidence in this context meant “reliable evidence”, and that was a subjective judgement call.

The gist of the situation is that Jeffrey Morris didn’t like a comment (or a few comments) on TechDirt from a post from 2004. He is demanding that all of TechDirt.com be taken down thanks to the semi-anonymous comments some people have made on the site.

Here’s hoping the SPEECH Act does its job.

David B (29) said:

First up, *everyone* should be expected to prove their assertions, that’s the usual way the burden of truth works. The BCA proved Singh had made defamatory remarks, Singh had to prove what he said was the truth.

IIUC, proving the truth of his statement would not have been adequate defence. Partly, this is because the UK libel law doesn’t care if the damaging statements were true, only whether or not they were damaging.

Partly, it comes down to the judge’s agreement with the BCA about the definition of “bogus”. Singh meant it in the sense of “egregious”, but it was interpreted to mean “deliberately fraudulent”. All the BCA had to do was claim that they believed the treatments to be effective and there is no way Singh could have claimed knowing fraud (unless the BCA had some kind of internal paper trail to which Singh could have gained access, but the UK does not have the US’s freedom of information laws).

Since the claim of libel was based on the BCA’s interpretation of Singh’s words, not on the spirit in which they were intended, the damage was that the BCA was fraudulent (although, interestingly, they did remove from their website the claims that Singh was attacking). I firmly believe that the BCA ought to be answerable to the MHRA (the Medicines and Healthcare Regulatory Agency). Then we’d see these bogus claims shut down in a trice. But they are not so answerable.

The simple fact is that, by bringing someone’s reputation into disrepute – even if those accusations are false – you are damaging him and should be prepared to substantiate those accusations.

Sadly, that’s irrelevant.

The biggest problem with UK libel law is not that the accused is guilty until proven innocent (although that’s bad enough). No, the larger problem is that it doesn’t matter whether or not what you said was true. If it is damaging to someone’s reputation, it is libel.

So, even though Singh told the straight truth about the BCA, he was still found guilty because, in this case, the truth damaged their reputation.

Personally, I think that there should be different libel laws for private citizens and organisations. I.e. if you tell the truth about an organisation (such as a company, body of practitioners, government department or whatever), then it should be impossible for you to be guilty of libel. However, if you publicise the truth about the personal life of a private citizen, then you should be liable for prosecution despite it being true. That way, you protect individuals and prevent organisations from using this law to silence criticism.

But I can’t see that happening.

#28 hale-bopp : I am aware that Phil has been attacked on here and on other blogs. But these places are very inconsequential arenas as far as the greater public are concerned. Had he been attacked by, for example, Paxman on BBC television with an audience numbered in millions; or in one of our redtop newspapers the situation would be different. When his income dried up and he failed to get invitations to meetings his opinion of the libel laws would probably change.

I like the way the BA allows people to have their say even when they attack him unreasonably. It makes them look all the more stupid and churlish.

I think the way Dr Phil Plait defends himself here – reasonably and politely not by suppressing or (usually) insulting those who disagree with him* – is superb and he is a great role model in this area.

I can’t see a libellous attack on him in a mainstream media forum going unchallenged – but by solid evidence with good reasoned argument and with a lot of the BA’s many loyal fans speaking up in his defense as well – not via unfair nasty legal action which I feel Dr Plait is likely to resort to *only* when really necessary – unlike too many Americans and Britons! (Oops is that libellous or just a stereotype?)

EDIT TO ADD :

@45. Nigel Depledge :

The biggest problem with UK libel law is not that the accused is guilty until proven innocent (although that’s bad enough). No, the larger problem is that it doesn’t matter whether or not what you said was true. If it is damaging to someone’s reputation, it is libel. So, even though Singh told the straight truth about the BCA, he was still found guilty because, in this case, the truth damaged their reputation.

(Emphasis added)

Agreed 100% there.

To have it NOT matter whether what was said was true or not is just bonkers & utterly wrong in my view.

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* The possible, arguable ‘exception that proves the rule’ here being his occassional use of the insulting and counter-productive “denier” label for those disputing Anthropogenic Global Warming. I (now) agree with the climatologist consensus here that AGW is real but I still think the use of the loaded “denier” term is clearly an insult and as such is NOT conduicive to civilised rational discussion or changing people’s minds.

I do believe freedom of speech is one of our greatest and most important freedoms – in the US and the Western world generally. I strongly agree with and support the idea attributed (I gather now perhaps wrongly) to Voltaire :

“I may disagree with what you say but I will defend to the death your right to say it.”

@23. Ken :

SOMETIMES the best way to fix something is to force it to break. What some enterprising folks might try & do is sue each other in the English system — with the intent being to overload the system with so many cases they have to change something. Win or lose, the parties could agree to not abide by whatever judgement the court decides…so the effect is to bog down their system. And if the contestents are colluding, they can really work to drag out the trial process & bog things down!

Nice idea.

Unfortunately there are laws against “vexatatious litigation” & “conspiring to pervert the course of justice” plus “contempt of court” as already mentioned by (# 24.) dave from manchester England that stand in the way of such a tactic being workable.

I prefer Shakespeares suggestion that we “kill all the lawyers” personally!*

@18. Nikki B Says:

..I don’t watch TV for a reason.

That reminds of the question about why TV is called a medium :

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Answer : because it is neither rare nor well done!

Actually, TV *does* have its positive uses when cricket or good documentaries like a certain apparently very good Bad Universe show are broadcast.

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*Note for the humour challenged – no I’m *not* seriously calling for lawyers to be killed – the above suggestion is tongue-in-cheek.)

I am aware that Phil has been attacked on here and on other blogs. But these places are very inconsequential arenas as far as the greater public are concerned. Had he been attacked by, for example, Paxman on BBC television with an audience numbered in millions; or in one of our redtop newspapers the situation would be different. When his income dried up and he failed to get invitations to meetings his opinion of the libel laws would probably change.